Bradley Shopoff v. State of Indiana (NFP)
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JOHN G. CLIFTON Fort Wayne, Indiana STEVE CARTER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana Jan 29 2008, 9:02 am IN THE COURT OF APPEALS OF INDIANA BRADLEY SHOPOFF, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 35A05-0711-CR-601 APPEAL FROM THE HUNTINGTON SUPERIOR COURT The Honorable Jeffrey R. Heffelfinger, Judge Cause No. 35D01-0404-FC-85 January 29, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION BARNES, Judge Case Summary Bradley Shopoff appeals his conviction and sentence for Class C felony nonsupport of a dependent child. We affirm. Issues Shopoff raises two issues, which we restate as: I. whether he may challenge the sufficiency of the evidence; and II. whether his sentence is appropriate. Facts In 1994, Shopoff was ordered to pay a weekly child support obligation of $130.00. Shopoff repeatedly failed to pay the child support obligation and accrued an arrearage of $31,381.57. In 2004, the State charged Shopoff with Class C felony non-support of a dependent child. On July 20, 2004, Shopoff pled guilty, and the State agreed not file an habitual offender enhancement. On August 17, 2004, the trial court sentenced Shopoff to eight years with four years suspended. In 2007, Shopoff sought and received permission to file a belated appeal. Shopoff now appeals his conviction and sentence. Analysis I. Guilty Plea Shopoff argues that there is insufficient evidence to support his conviction. We do not reach the merits of this argument because by pleading guilty Shopoff waived the right 2 to challenge his conviction on appeal. See Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004) ( A person who pleads guilty is not permitted to challenge the propriety of that conviction on direct appeal. ). Thus, Shopoff s conviction for Class C felony nonsupport of a dependent stands. II. Sentence Shopoff also argues that his eight-year sentence is inappropriate in light of the nature of the offense and the character of the offender. See Ind. Appellate Rule 7(B). Although Indiana Appellate Rule 7(B) does not require us to be extremely deferential to a trial court s sentencing decision, we still must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id. Additionally, a defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate. Id. Shopoff has not met this burden. In considering the nature of the offense, we conclude this is not a run of the mill non-support case. Shopoff s child support payments were sporadic, at best, for almost a decade. In failing to make regular child support payments, Shopoff accrued an arrearage of more than double the amount necessary to elevate the offense to a Class C felony $ 31,381.57. Further, we are not persuaded that Shopoff s character requires anything less than the imposition of the maximum sentence. Shopoff s felony history includes a conviction for five separate instances of Class D felony theft and one count of Class D felony credit card fraud. His criminal history also includes misdemeanor convictions for operating 3 without a license, two counts of criminal conversion, resisting law enforcement, false informing, and reckless possession of paraphernalia. At the time of sentencing, Shopoff s probation had been revoked three times and other misdemeanor charges were pending against him. Shopoff s criminal history clearly demonstrates an ongoing disregard for the law. Also, we conclude that Shopoff s guilty plea is worth little, if any, mitigating weight because in exchange for his guilty plea, the State agreed not to pursue an habitual offender enhancement that appears could have been easily proven. Thus, in considering the nature of the offense and the character of the offender, we conclude an enhanced sentence is warranted. The eight-year sentence is not inappropriate. Conclusion By pleading guilty, Shopoff may not challenge the evidence supporting his conviction. Further, Shopoff s eight-year sentence is appropriate. We affirm. Affirmed. SHARPNACK, J., and VAIDIK, J., concur. 4
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